IN THE COURT OF APPEALS

STATE OF ARIZONA
DIVISION ONE
ADVOCATES FOR INDIVIDUALS WITH No. 1 CA-SA
DISABILITIES, LLC; ADVOCATES FOR
AMERICAN DISABLED INDIVIDUALS,
LLC; DAVID RITZENTHALER;
Maricopa County Superior
Court, CV2016-090506
Petitioners/Plaintiffs,
v.
HONORABLE DAVID M. TALAMANTE, (Oral Argument Requested)
Judge of the Superior Court of the State
Of Arizona, in and for the County of
Maricopa,
Respondent,
and
STATE OF ARIZONA, ex rel., MARK
BRNOVICH, Consolidated Defendants;
Defendants / Real Parties in Interest.
PETITION FOR SPECIAL ACTION
Peter Strojnik, #00464
STROJNIK, P.C.
2415 E. Camelback Road #700
Phoenix, AZ 85016
Attorneys for Plaintiffs/Petitioners
Telephone: (602) 524-6602
ps@strojnik.com
Attorneys for Plaintiffs/Petitioners

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TABLE OF CONTENTS
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TABLE OF CONTENTS .........................................................................................i
TABLE OF AUTHORITIES ................................................................................. ii
INTRODUCTION....................................................................................................1
ISSUE PRESENTED ...............................................................................................2
JURISDICTIONAL STATEMENT .......................................................................3
STATEMENT OF MATERIAL FACTS...............................................................4
ARGUMENT ............................................................................................................7
I. Defendants are not prejudiced, within the meaning of Rule 15, by
prospective allegations ....................................................................................8
II. The procedural history and posture of the litigation do not support
denial of leave to amend to add post-Complaint events ................................17
CONCLUSION ......................................................................................................18
CERTIFICATE OF COMPLIANCE ..................................................................19
CERTIFICATE OF SERVICE ............................................................................20

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TABLE OF AUTHORITIES
CASES
Arizona Legislative Council v. Howe In & For Cty. of Maricopa, 192 Ariz. 378, 965
P.2d 770 (1998) ......................................................................................................4
Carranza v. Madrigal, 237 Ariz. 512, 354 P.3d 389, 392 (2015) .............................3
Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 189 P.3d 344 (2008) ......................7
Dollar A Day Rent A Car Sys., Inc. v. Superior Court In & For Maricopa Cty., 107
Ariz. 87, 482 P.2d 454 (1971) ................................................................................4
Green Reservoir Flood Control Dist. v. Willmoth, 15 Ariz. App. 406, 489 P.2d 69
(1971)....................................................................................................................15
In re Silvas Estate, 105 Ariz. 243, 462 P.2d 792 (1969) ........................... 13, 14, 17
MacCollum v. Perkinson, 185 Ariz. 179, 913 P.2d 1097 (App. 1996) ....................8
Northstar Fin. Advisors Inc. v. Schwab Investments, 779 F.3d 1036 (9th Cir. 2015)
....................................................................................................................... 11, 12
Osuna v. Wal-Mart Stores, Inc., 214 Ariz. 286, 151 P.3d 1267 (App. 2007) ...........4
Rapp v. Olivo, 149 Ariz. 325, 718 P.2d 489 (App. 1986) .......................................12
Rockwell Int'l Corp. v. United States, 549 U.S. 457, 127 S.Ct. 1397, 167 L.Ed.2d
190 (2007).............................................................................................................12
Soil Remediation, Inc. v. City of Tucson, 201 Ariz. 438, 36 P.3d 1208 (App. 2001)
..........................................................................................................................8, 13
United Union of Roofers, Waterproofers, & Allied Trades No. 40 v. Ins. Corp. of
Am., 919 F.2d 1398 (9th Cir. 1990) ......................................................................11
STATUTES
ARIZ.REV.STAT.ANN. 12-120.21(A)(4)....................................................................4
OTHER AUTHORITIES
Arizona Supreme Court Order No. R-16-0010 (effective January 1, 2017) .............9
State Bar Committee Note to Ariz.R.Civ.P. 15(d) ........................................... 10, 11
RULES
Ariz.R.Civ.P. 15 ............................................................................................... passim
Ariz.R.P.Spec.Act. 1(a)..............................................................................................4
ARIZ.R.P.SPEC.ACT. 7(e) .........................................................................................19
FED.R.CIV.P. 15 ............................................................................................... passim
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TREATISES
Wright and Miller, 6A Fed. Prac. & Proc. Civ. 1504 (3d ed.) ...........................8, 9
Wright and Miller, 6A Fed. Prac. & Proc. Civ. 1505 (3d ed.) .............................11
CONSTITUTIONAL PROVISIONS
Ariz. Const. art. II, 4 .............................................................................................15
Ariz. Const. art. II, 5 .............................................................................................15

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INTRODUCTION
Plaintiffs/Appellants file this Petition for Special Action from the denial of
their Motion for Leave to File Amended Complaint in over one thousand
consolidated ADA-enforcement actions filed in Maricopa County Superior Court
(consolidated under Case No. CV2016-090506).
All of the cases were filed between February 12th and March 24th, 2016, which
was seven to eight months before the filing of the Motion to Amend (on October
19th, 2016).1 Trial has not been set in any of these matters, and in fact no scheduling
orders have been entered in any of these cases, or discovery deadlines set (or passed).
There has been no allegation that any statute of limitations has passed.2
The lower court denied the Motion for Leave on the grounds that it would be
prejudicial if allowed against the consolidated Defendants because [s]ome of the
allegations in the Amended Complaint were or are prospective in nature and set forth
Plaintiffs intent to carry out future inspections to support the allegations in their
Complaint. However, this does not constitute undue prejudice within the meaning
of Rule 15, Ariz.R.Civ.P. It is entirely proper to amend a Complaint to allege postcomplaint occurrences under Rule 15(d); and in fact many of the original Complaints
specifically alleged that Plaintiffs would be conducting further inspections. Further,

See Motion to Amend (with proposed Complaint attached, as amended by

Plaintiffs 10-27-2016 Notice of Erratum), Exhibit A to Appendix. (The original
proposed Amended Complaint is also attached as Exhibit L.)
Further, there has been no prior effort to amend all of the Complaints filed, much
less in the manner requested. An Amended Complaint or Notice of Erratum had been
previously filed in around a quarter of the cases, for the sole of purpose of correcting
a typographical error, substituting in a party defendant, or (in a small handful of
claims) removing federal claims.

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there is nothing in the record to support the existence of undue prejudice within
the meaning of Rule 15 (i.e., inconvenience and delay caused by the addition of
new parties or issues that require preparation for factual discovery which would not
otherwise have been necessitated nor expected, thus requiring delay in the decision
of the case3). The Court also found that it would be particularly inappropriate [to
add a new party and to allege facts occurring subsequent to the facts alleged in the
Complaints] given the procedural history and posture of this litigationan abstruse
finding that the lower court chose not elaborate on, and which appears to have made
sua sponte. Plaintiffs are left only to speculate that that the lower court found that its
own decision to consolidate these over one thousand cases, and to allow the State to
file an (anticipated) Motion to Dismiss the cases for lack of standing, provided a
basis on which to deny leave to Amend. But that amounts merely to a decision to
deny leave on the grounds that one party to the case (the State) threatened to file a
Motion to Dismiss. Not only is that contrary to the Rules of Procedure, but it is
grossly unfair for the court to deny leave simply because it would rather hear an
(as-yet) unfiled Motion to Dismiss, especially where the Amended Complaint may
have the effect of rendering the Motion. In the context of these cases, the procedural
history and posture furnishes no valid basis on which to deny leave to amend.
Plaintiffs ask this Court to reverse the lower courts decision to deny leave to amend,
to order that leave be granted, and to remand for further proceedings.
ISSUE PRESENTED
Did the lower court err by denying Plaintiffs Motion for Leave to
Amend the Complaint(s) on the grounds that Plaintiffs proposed
Amended Complaint includes allegations that are prospective in
nature and alleges facts occurring subsequent to the facts alleged

Carranza v. Madrigal, 237 Ariz. 512, 354 P.3d 389, 392 (2015).

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in the Complaintsin light of the express allowance for such

amendments under Rule 15(d); and where no trial has been set, no
discovery deadlines or statutory limitations period has passed, and
the new facts occurring subsequent to the facts alleged in the
Complaints were also expressly referenced by the original
Complaint(s)?
JURISDICTIONAL STATEMENT
This Court has special action jurisdiction pursuant to ARIZ.REV.STAT.ANN.
12-120.21(A)(4). Special action jurisdiction is discretionary and appropriate when
a party has no equally plain, speedy, and adequate remedy by appeal.
Ariz.R.P.Spec.Act Rule 1(a); Arizona Legislative Council v. Howe In & For Cty. of
Maricopa, 192 Ariz. 378, 380, 965 P.2d 770, 772 (1998). [I]t is settled law in
Arizona that denial of leave to amend a complaint is a proper subject for special
action review, in part because denial of a motion to amend is not an appealable
order. Osuna v. Wal-Mart Stores, Inc., 214 Ariz. 286, 292, 151 P.3d 1267, 1273
(App. 2007); Dollar A Day Rent A Car Sys., Inc. v. Superior Court In & For
Maricopa Cty., 107 Ariz. 87, 89, 482 P.2d 454, 456 (1971).
Plaintiffs seek special action relief from the denial of their motion for leave to
amend because their only equally speedy (but inadequate) alternative under the
Rules of Civil Procedure, as argued and explained below, would be to file their
Amended Complaint as an entirely new action against all of these same defendants
(in which Plaintiffs will allege their new allegations of facts occurring subsequent
to the original complaints). Given that there are over one thousand defendants
involved in this consolidated proceeding, Plaintiffs believe that having to file an
entirely new Complaint against these defendants would be nothing more than costly,
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tedious, and unfair for all of the parties involved, in direct contravention of
Ariz.R.Civ.P. 1.
This case also raises novel and potentially recurring issues of statewide
importance with respect to the Courts ability to deny leave to amend a complaint
based solely on another partys prospective filing of a Motion to Dismiss, and of
using the procedural history and posture of the case, without more, as a basis for
denying leave to amend.
STATEMENT OF MATERIAL FACTS
Plaintiffs/Appellants Advocates for Individuals with Disabilities, LLC;
Advocates for American Disabled Individuals, LLC (the Organizations); and
David Ritzenthaler (and in many cases, just the Organizations) filed over 1,200 ADA
enforcement actions in Maricopa County Superior Court between February 12th,
20164 and March 24th, 2016.5 In those suits, Plaintiffs seek injunctive relief against
various defendant public accommodations for violations of the Americans with
Disabilities Act and Arizonans with Disabilities Act with respect to their parking
lots. The actions were filed under separate Complaints, under various different forms
of Complaint.
In Motions filed on August 24th, 20166 and August 30th, 2016,7 the State
moved to intervene and to consolidate the over one thousand actions, for the explicit

See Exhibit D, first Complaint filed (in CV2016-090506).

See Exhibit E, Complaint filed on March 24th, 2016 (in CV2016-092234).

See Exhibit F, States Motion to Intervene.

See Exhibit G, States Motion to Consolidate.

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purpose of filing a Motion to Dismiss them all, to which Plaintiffs strenuously

objected.8 (The State has never consulted with Plaintiffs as to what the specific
basis of the Motion is, but presumably the State believes that Plaintiffs do not have
standing to sue for redress under the ADA without alleging that they/their
member(s) have visited and continue to visit each of the defendants parking lots
regularly.) Among Plaintiffs objections to the consolidation, was that to hear a
Motion to Dismiss over one thousand separate actions with separately-filed
Complaints and diverse defendants in a single hearing is so unworkable as to
amount to a denial of due process. The Court granted the intervention and
consolidation anyway on September 23, 3016, on the grounds that the legal issues
raised in these several complaints are substantially similar, and for consideration
of the common legal issues that were framed by the Plaintiffs in the drafting and
filing of their several complaints.9 In response, Plaintiffs filed this Motion to
Amend, for at least two reasons: 1) to clarify and simplify the common allegations
of law and fact in all of the consolidated matters, to the extent possible; and more
importantly, 2) to add allegations that support Plaintiffs standing to file suit,
including the allegation that one of Plaintiffs members, a paraplegic man named
Fernando Gastelum, has visited and will continue to visit all of the defendants
accommodations until they are brought into compliance with the law. (The

See Exhibits H and I, Plaintiffs Responses to States Motion to Intervene and

Motion to Consolidate, respectively.
8

See Appendix at Exhibit C (Order filed 9-26-2016).

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Amended Complaint also adds Mr. Gastelum as a named party.) Specifically, the
Amended Complaint10 alleges that:
Plaintiff Fernando Gastelum (Plaintiff Gastelum) has either visited
the Consolidated Defendants accommodations, or will have visited
them by the end of the first week of December, in order to use or attempt
to use the parking lot, and for the acknowledged purpose of testing
or compliance. Plaintiff Gastelum intends to continue to visit and use
(or attempt to use) the Consolidated Defendants accommodations for
such purposes, and at no longer than regular quarterly intervals, so long
as this matter remains pending, and/or until Plaintiffs deem that
compliance has been achieved.
(Page 6, paragraph 22 of the proposed Amended Complaint, attached to the
Motion for Leave, Appendix A.)
The Amended Complaint also includes other substantive allegations in
support of the Plaintiffs standing, e.g. at 2-4; 16-17; 23 27; but it seems that it
is this allegation at paragraph 22 to which the lower court is referring in its Order
(when it states that [s]ome of the allegations in the Amended Complaint were or
are prospective in nature and set forth Plaintiffs intent to carry out future
inspections to support the allegations in their Complaint).
Because the trial court, on September 26th, 2016, sua sponte issued an Order
staying the cases as to all parties but the Plaintiffs and State (i.e. staying the cases
as to the actual defendant public accomodations),11 Plaintiffs took the position that

10

As modified by the Notice of Erratum filed on 10-27-16, Exhibit O.

11

Exhibit M to Appendix (9-26-16 Order).

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their Motion for Leave to Amend should be ruled upon without prejudice to the
Defendants, i.e. that it should be binding only as between Plaintiffs and the State.12
The State consented to the Motion for Leave in principle, but opposed any
allegations about events post-dating the original complaints, which was
presumably a reference to paragraph 22.13 A single Defendant filed a Response to
the Motion to Amend on November 8th,14 and Plaintiffs filed Replies.15 The Court
filed its order denying leave on November 28, 2016.16

ARGUMENT17
The trial courts Order cited two grounds for denying leave, neither of which
supports its discretion to deny leave at this stage of the litigation. The trial court

12

The Plaintiffs took this position without waiving their objections to intervention
by the State in the first place (to which Plaintiffs have objected, since the State has
identified no concrete or particularized interest in these matters of any kind, and
therefore no standing to intervene).
13

Appendix, Exhibit J (States Response to Motion to Amend), page 1, lines 16-17.

Appendix, Exhibit K (Response by Defendant 1639 40th Street, LLC). The case
has currently been stayed as to all parties but the Plaintiffs and the State (and the
Defendants response was also untimely), leading Plaintiffs to object to it being
considered by the lower court, but to respond without waiving that objection.

14

15

Appendix, Exhibits N and P.

16

Appendix, Exhibit B.

17

Plaintiffs hereby incorporate as if set forth herein, and re-urge, every argument
already made by them in their Motion to Amend and Replies in Support of Motion
to Amend filed on November 4th and November 18th (Exhibits N and P hereto).

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abused its discretion by finding that Defendants would be prejudiced per se

because [s]ome of the allegations in the Amended Complaint were or are
prospective in nature and set forth Plaintiffs intent to carry out future inspections
to support the allegations in their Complaint. It also abused its discretion by
finding that the procedural history and posture of the litigation alone support
denying leave, especially where the court appears simply to be saying that it would
rather hear an anticipated Motion to Dismiss the Complaint than grant a Motion for
Leave to Amend the Complaint which could have the effect of rendering the Motion
to Dismiss moot.
I.

Amendments to add allegations of post-Complaint events are

permissible, and Defendants are not prejudiced by them within
the meaning of Rule 15

First, Arizona is a notice pleading State, and the purpose of complaints

themselves is merely to give the opponent fair notice of the nature and basis of the
claim and indicate generally the type of litigation involved.18 In ruling on a Motion
to Amend, the court must presume that the facts alleged in the proposed complaint
are true. MacCollum v. Perkinson, 185 Ariz. 179, 185, 913 P.2d 1097, 1103 (App.
1996), corrected (Mar. 13, 1996). There is no prohibition against amending a
Complaint to allege post-Complaint events, and in fact Rule 15(d) specifically
allows for it (referring to it as a supplemental pleading). Courts are obligated to
show to post-Complaint supplemental amendments under Rule 15(d) exactly the
same degree of liberality afforded to amendments generally under Rule 15(a), and

18

Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, 189 P.3d 344, 346 (2008).

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likewise to eschew ruling on them on the merits. [T]he procedural issue involved
in allowing the filing of a supplemental complaint is different from any substantive
issues presented by the supplemental complaintIn the analogous context of ruling
on a motion to amend a complaint, a trial court does not decide the merits or facts
of a controversy. We believe the same rule should apply to supplemental
pleadings. Soil Remediation, Inc. v. City of Tucson, 201 Ariz. 438, 446, 36 P.3d
1208, 1216 (App. 2001). In fact, the distinction between amended and
supplemental pleadings [under Rules 15(a) and 15(d)] is sometimes ignored
completely. Wright and Miller, 6A Fed. Prac. & Proc. Civ. 1504 (3d
ed.)(discussing Rule 15(d), Fed.R.Civ.P., which is substantively identical to the
Arizona rule).19 Supplemental pleadings under Rule 15(d) ought to be allowed
as a matter of course unless some particular reason for disallowing leave is shown;
the Courts power should be liberally applied in favor of granting leave; and the
Court should not examine the substantive merits of the supplemental pleading at
the time leave is requested. Id. at 1510.
The lower court misconstrued the meaning of prejudice for purposes of
Rule 15, and acted in direct contravention of Rule 15(d), by finding that allowing
the amendments would be prejudicial against the Defendants because [s]ome of
the allegations in the Amended Complaint were or are prospective in nature and set

19

In fact, pursuant to Arizona Supreme Court Order No. R-16-0010 (effective

January 1, 2017), Rule 15(d) is amended to be completely identical to the federal
rule , with the exception that the federal rule contains the words on just terms, but
the Arizona rule does not. (There is also a minor grammatical/stylistic difference in
the last line, regarding time to answer.)

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forth Plaintiffs intent to carry out future inspections to support the allegations in
their Complaint.
While not expressly referenced by the trial court in its Order, the State (and
one of the Defendants) argued that Plaintiffs should not be allowed to amend the
Complaint to allege post-Complaint events, for essentially two reasons: 1) the State
argued, in effect, that Plaintiffs complaints should be dismissed in order to force
the Plaintiffs to file all of them all over again, because Plaintiffs allegedly did not
have standing before filing the Complaint.20 2) Defendants argued that if they
have already permanently fixed the ADA violations which the Amended Complaint
alleges have not been permanently fixed, then Plaintiffs should not be allowed to
amend their complaint to assert that they have not been permanently fixed.
The States argument
As to the first argument, which is basically that Plaintiffs should be
punished for filing complaints that did not contain allegations sufficient to
support standing in the first instance, and/or for not having standing when the
complaints were filed, by making them file the complaints all over again: the Rules
of Civil Procedure have many goals, but punishing litigants, by causing them to
needlessly re-file lawsuits (and in general, stymying their right to seek redress from
the courts) is not among them. In fact, this is exactly the reason why Rule 15(d)
was introduced in the first place (into both the federal and state rules): prior to the
introduction of Rule 15(d), some cases opposed by other cases and criticized by

20

The State further argued that it anticipates asking for some kind of order preventing
Plaintiffs from ever filing another lawsuit, allowing it to in effect shut down
Plaintiffs First Amendment right to seek redress from the courts completely.
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the commentators, [had] taken the rigid and formalistic view that where the original
complaint fails to state a claim upon which relief can be granted, leave to serve a
supplemental complaint must be denied. State Bar Committee Note to
ARIZ.R.CIV.P. 15(d). Thus plaintiffs [had] sometimes been needlessly remitted to
the difficulties of commencing a new action even though events occurring after the
commencement of the original action may have made clear the right to relief. Id.
(compare with the nearly identical commentary on Rule 15(d) in Wright & Miller:
A number of courts, however, felt that requiring plaintiff to go through the
needless formality and expense of instituting a new action when events occurring
after the original filing indicated a right to relief was inconsistent with the
philosophy of the federal rules). To eliminate any uncertainty on the point, the
second sentence of the present version of Rule 15(d), which adopts the more liberal
of these two judicial positions, was added in 1963. Wright, 6A Fed. Prac. & Proc.
Civ. at 1505. Since 1963, the federal and state Rule 15(d) have expressly provided
for, if not encouraged parties to cure defects such as standing through amendment,
even where standing did not exist at the time of filing the complaint, precisely
because the result of denying leave is simply to punish the plaintiff by making
them file another duplicative action. Under the [1963] amendment the court has
discretion to permit a supplemental pleading despite the fact that the original
pleading is defective. State Bar Committee Note to Ariz.R.Civ.P. 15(d). Often a
plaintiff will be able to amend its complaint to cure standing deficienc[i]es. To deny
any amending of the complaint places too high a premium on artful pleading and
would be contrary to the provisions and purpose of Fed.R.Civ.P. 15. United Union
of Roofers, Waterproofers, & Allied Trades No. 40 v. Ins. Corp. of Am., 919 F.2d
1398, 1402 (9th Cir. 1990). In Northstar Fin. Advisors Inc. v. Schwab Investments,
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779 F.3d 1036, 1044 (9th Cir. 2015), the Ninth Circuit expressly found that parties
may cure standing deficiencies through supplemental pleadings that allege postcomplaint events under Fed.R.Civ.P. 15(d). Defendants argue that because
standing must be determined at the time a complaint is filed, and because [Plaintiff]
did not obtain an assignment of claim until several months after the original
complaint was filed, the assignment could not cure [Plaintiffs] original lack of
standing.[The district court judge] observed that, although there is no published
Ninth Circuit authority on this point, courts in other circuits have found that parties
may cure standing deficiencies through supplemental pleadings [and granted
plaintiff leave to file a supplemental pleading under Rule 15(d)].We agree with
[the judges] application of Fed.R.Civ.P. 15(d) Id., 779 F.3d at 1044, 1047
(internal quotation marks omitted). Explaining its reasoning further, the Ninth
Circuit stated: Rule 15(d) permits a supplemental pleading to correct a defective
complaint and circumvents the needless formality and expense of instituting a new
action when events occurring after the original filing indicated a right to relief.
Moreover, even though Rule 15(d) is phrased in terms of correcting a deficient
statement of claim or a defense, a lack of subject-matter jurisdiction should be
treated like any other defect for purposes of defining the proper scope of
supplemental pleading. Id., 779 F.3d at 1044 (internal citations, quotations marks
and brackets omitted). This holding is consistent with Rockwell Int'l Corp. v.
United States, in which the Supreme Court [] held that when a plaintiff files a
complaint in federal court and then voluntarily amends the complaint, courts look
to the amended complaint to determine jurisdiction. Id. (quoting Rockwell Int'l
Corp. v. United States, 549 U.S. 457, 47374, 127 S.Ct. 1397, 167 L.Ed.2d 190
(2007)). Arizona cases have likewise applied Rule 15(d) to allow for amendments
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that allege events occurring after the filing of the complaint, even though those
events were pre-requisites to filing the complaint in the first place. See e.g. Rapp v.
Olivo, 149 Ariz. 325, 328, 718 P.2d 489, 492 (App. 1986)(finding that amendment
alleging that landlord sent a notice to tenant after the filing of the complaint was
proper under Rule 15(d), even where notice was statutory pre-requisite to filing
original cause of action).
The lower courts ruling has the essential effect of forcing Plaintiffs to re-file
the Amended Complaint, containing the post-Complaint factual allegations in
support of standing, as another lawsuit. This is wasteful and in direct contradiction
of the purpose and intent of Rule 15(d). It is burdensome not only on Plaintiffs but
also the defendants, who will all be made to bear the cost of answering a new suit.
For all these reasons, the States argument that Defendants should be punished
by having to commence a new action is not an acceptable grounds to deny leave to
amend, and is contrary to both the text and the spirit of the Rules of Civil Procedure.

Defendants argument
With respect to Defendants argument that leave should be denied in case
the Defendant has already fixed the problem this is effectively asking the court
for a ruling on the merits, since the Amended Complaint fairly alleges that the ADA
violations have not been fixed (i.e. that barriers have not been removed), and that
even if any barrier is removed, then Defendants can readily replace them (so that

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the action is not moot).21 It is well-settled that the court must take the allegations in
the Complaint to be true, both on a Motion to Dismiss and a Motion to Amend, and
under Rule 15(a) as well as Rule 15(d). Further, the Court should rule only on
procedural issues in response to a Motion to Amend, and not substantive issues
in the Amended Complaint, under both Rule 15(a) and 15(d). See Soil Remediation,
201 Ariz. at 446, 36 P.3d at 1216. By finding that Defendants would be prejudiced
by the amendment in case the Defendant has fixed the problem permanently, the
lower court is in effect assuming the Complaint to be false, and making a de facto
ruling on the merits and the substantive issues raised by the Amended Complaint.
This has the express effect of denying Plaintiffs their day in court, e.g. their
opportunity to prove that the Defendants have not fixed the issues, or that the case
is not moot, the repairs are not permanent, etc. Defendants may of course raise these
issues in the form of a Motion for Summary Judgment in response to the Amended
Complaint; but this is no basis for the Court to deny merely leave to amend.
In the context of deciding whether to allow an amendment concerning events
that occurred after the filing of complaint, the Arizona Supreme Court has stated
that Rule 15 provides that leave to amend shall be freely given. There can be no
reason to deny such an amendment, in the absence of surprise or a delay in the trial
caused by untimeliness of the request. In re Silvas Estate, 105 Ariz. 243, 248, 462
P.2d 792, 797 (1969). In Silvas Estate, the Arizona Supreme Court found that the
trial court abused its discretion by not allowing the plaintiffs to amend their

21

See Appendix, Exhibit A, proposed Amended Complaint at 21, 24, 25, 27; 3436; 41.

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complaint to allege that their original claims had been settled after the filing of the
complaint (and to bring a new claim for breach of that settlement agreement), where
the motion for leave was filed a year and one half before trial. Id. Here, likewise,
allowance of the amendment will not cause any delay in trial, as no trial has been
set on any of these matters. Nor should the fact that Plaintiffs and their members
continue to visit and inspect Defendants parking lots come as any surprise to the
Defendants, since the complaint (as well as the investigative reports that were
disclosed to Defendants, and which are now online and were submitted with the
proposed Amended Complaint22) have all made it clear that Plaintiff AID and its
members are continuing to inspect for ADA parking-lot violations and filing suit
on them. Many of the Complaints at issue (including the original Complaint filed
in the first underlying consolidated case, see Appendix hereto, Exhibit D at 24)
even state that Plaintiff shall seek to amend the Verified Complaint upon further
inspection of Defendant premises.23
In sum, prejudice within the meaning of Rule 15 is not merely prejudice
to the defendants. Clearly, any new allegations in an Amended Complaintand in
a sense, every new Complaint, in and of itselfis prejudicial to the defendants,
in the sense of causing them potential harm that they would rather avoid. Rule 15

22

http://www.aid.org/090506.

23

Plaintiffs cannot easily obtain a specific number for the number of consolidated
complaints that contain this particular allegation which is just one of the many
perils of consolidating over one thousand cases in one proceeding (i.e., the difficulty
in comparing an Amended Complaint to prior complaints), and one of the many
reasons why Plaintiffs objected to the consolidation (and continue to object).

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prejudice relates only to procedural prejudice i.e., prejudice caused by allowing

the filing of an Amended Complaint itself, and not by the substantive allegations
made within it. Since the only purpose to filing a Complaint in the first instance is
to give the defendants notice of the basis for litigation, then prejudice for
purposes of a Motion for Leave to Amend the complaint should be confined to
notice, i.e. whether the complaint raises entirely new issues or parties that
defendants simply will not have the time to deal with, given a pending trial date or
lapsed deadlines for discovery.24 No such situation is presented here. The State is
free to test the Amended Complaint via a Motion to Dismiss, and the Defendants
are free to test it via a motion for summary judgment or other dispositive motion
arguing that any violations have already been remedied. But simply to deny leave
to amend is to deny the Plaintiffs their day in court, and to prevent them from having
their claims heard at all. It is these concernswhich are ultimately of constitutional
dimension25that underlie the well-established rules concerning Motions to
Amend, and the liberal policies in favor of allowing amendment. Wherever
possible, cases should be resolved on the merits. Abstruse reasons for denying leave

The function of pleading is to give notice and amendments will be liberally

granted unless the adverse party is prejudicedAs long as the amended complaint
refers to the same transaction or occurrence, defendant being put on notice by the
first complaint, the amendment will be allowed even though new defendants or new
theories are introduced. Green Reservoir Flood Control Dist. v. Willmoth, 15 Ariz.
App. 406, 409, 489 P.2d 69, 72 (1971)(internal citations omitted).
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25

Plaintiffs have a First Amendment right to petition the court for grievances (see
also Article 2, section 5 of the Arizona Constitution), which are guaranteed by due
process under the Fifth and Fourteenth Amendments of the United States
Constitution (and Article 2, section 4 of the Arizona Constitution).
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to amend, especially where they amount to little more than a ruling on the merits or
an excuse to hear a motion to dismiss the case instead, must be discouraged.
II.

The procedural history and posture of the litigation, without

more, do not support denial of leave to amend to add postComplaint events

To the extent that even the lower court failed to explain the meaning of its
statement that it would be particularly inappropriate given the procedural history
and posture of this litigation to grant leaveand that the lower court appears to
devised this as a grounds to deny leave sua spontethis lack of clarity should be
held against the lower court, and not Plaintiffs. Plaintiffs can only speculate that the
lower court is referring to the fact that the lower courtover Plaintiffs strenuous
objections26decided to allow the State to intervene in these actions for purposes
of filing a Motion to Dismiss, and granted its motion to consolidate all
approximately 1,200 of the cases, in August/September of this year. There is
certainly nothing else unique about the procedural history and posture of these
suits, or anything else that would support the courts view, given that trial has not
been set in any of these matters, scheduling orders have not been entered setting
discovery deadlines, and only around half a year had passed since the cases were
filed. In short, it is unfair for the lower court to use its own decision to allow the
State to intervene and to file a Motion to Dismissi.e., to use merely the
anticipated (or actual) filing of a Motion to Dismissas a reason for denying a
Motion for Leave to Amend the Complaint. As the Arizona Supreme Court made
clear in In re Silvas Estate, there can be no reason to deny such a motion, in the

See Plaintiffs Response to Motion to Intervene, and Plaintiffs Response to

Motion to Consolidate, Appendix at Exhibits H and I, respectively.
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absence of surprise or a delay in the trial caused by untimeliness of the request.

105 Ariz. at 248, 462 P.2d at 797. Of course, the filing of an Amended Complaint
does not in and of itself moot the filing of a Motion to Dismiss; but what the lower
court has chosen to do here is the inverse, and it is unfair: to find that the expected
filing of a Motion to Dismiss somehow supplies a basis for denying a Motion for
Leave to Amend, especially one that might moot the Motion to Dismiss anyway.
From the perspective of achieving a just, speedy, and inexpensive resolution to
the case, it is decidedly more proper to grant a Motion to Amend before hearing
any Motion to Dismiss, especially if the Amended Complaint alleges additional
post-complaint eventsbecause otherwise, the court will simply be having a
Motion to Dismiss a stale complaint that could be mooted out by the Amended
Complaint; and/or the Court is merely forcing the Plaintiffs to file an entirely new
action that contains the allegations of post-Complaint events. In either event, the
lower court is simply inviting fruitless and prolonged, additional proceedings.
CONCLUSION
For all the foregoing reasons, the trial court abused its discretion in denying
Plaintiffs leave to amend. Plaintiffs ask the court to accept this special action, grant
relief, and reverse the trial courts order by granting Plaintiffs leave to amend.
RESPECTFULLY SUBMITTED December 9, 2016.
STROJNIK, P.C.
/s/ Peter Strojnik
Peter Strojnik
2415 E. Camelback Road #700
Phoenix, AZ 85016
Telephone: 602-524-6602
ps@strojnik.com
Attorneys for Plaintiffs/Petitioners
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CERTIFICATE OF COMPLIANCE

In compliance with ARIZ.R.P.SPEC.ACT. 7(e) the attached Petition for Special

Action is double-spaced, with the exception of headings, footnotes and indented
quotations, is written in a 14 point proportionate typeface font and contains 4,361
words.
RESPECTFULLY SUBMITTED December 9, 2016.
STROJNIK, P.C.
/s/ Peter Strojnik

Peter Strojnik
2415 E. Camelback Road #700
Phoenix, AZ 85016
Attorneys for Plaintiffs/Petitioners
Telephone: (602) 524-6602
ps@strojnik.com
Attorneys for Plaintiffs/Petitioners

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CERTIFICATE OF SERVICE
The undersigned certifies that the Petition for Special Action, was
electronically filed on December 9, 2016, using AZTurboCourt.
The undersigned further certifies that, on December 9, 2016, the following
was e-served, using AZTurboCourt, on the following:
Mark Brnovich
Attorney General
Paul N. Watkins, Esq.
Matthew Du Mee, Esq.
Brunn W. Roysden, III, Esq.
Oramel H. Skinner, Esq.
John Heyhoe-Griffiths, Esq.
Evan G. Daniels, Esq.
Assistant Attorneys General
1275 West Washington Street
Phoenix, AZ 85007
Paul.watkins@azag.gov
Beau.roysden@azag.gov
o.h.skinner@azag.gov
matthew.dumee@azag.gov
john.griffiths@azag.gov
evan.daniels@azag.gov
Attorneys for State of Arizona

The Honorable David M. Talamante

Maricopa County Superior Court
Southeast Facility 2-G
222 East Javelina Avenue
Mesa, AZ 85210
jweyrauc@superiorcourt.maricopa.gov

Scott F. Frerichs, Esq.

Lindsay G. Leavitt, Esq.
JENNINGS, STROUSS, & SOLMON, PLC
1 East Washington Street, Suite 1900
Phoenix, AZ 85004
sfrerichs@jsslaw.com
lleavitt@jsslaw.com
Attorneys for Defendants
Dennis I. Wilenchik, # 005350
John D. Wilenchik, #029353
WILENCHIK & BARTNESS, P.C.
The Wilenchik & Bartness Building
2810 North Third Street
Phoenix, AZ 85004
admin@wb-law.com
Attorneys for Plaintiffs/Petitioners
/s/ Peter Strojnik
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